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Supreme Court declines to hear transgender man's appeal to be registered as father

On 16 November 2020 the Supreme Court announced its decision that it had declined to hear a case in which a transgender man who had given birth to a son sought judicial review of the decision that he had to be registered on the birth certificate of the son as his "mother".

Mr Alfred McConnell is a transgender man and holder of a gender recognition certificate, who gave birth to a son, YY. The Registrar General for England and Wales decided that Mr McConnell had to be registered on the birth certificate of his son as his "mother."

Mr McConnell applied for judicial review of that decision. His primary claim was for a declaration that as a matter of domestic law he was to be regarded, and hence entitled to be registered, as YY's "father", or otherwise "parent" or "gestational parent." His secondary and alternative claim, on the basis that domestic law requires his registration as "mother,"" was for a declaration of incompatibility under section 4 of the Human Rights Act 1998 on the ground that the domestic regime is incompatible with his and/or YY's Convention rights under articles 8 and 14 of the European Convention on Human Rights.

The issues were:

On 9 November 2020, it was determined that permission to appeal be refused because, in the view of the Supreme Court, the applications do not raise an arguable point of law which ought to be considered at this time bearing in mind that the cases were the subject of judicial decision and reviewed on appeal.

Scott Halliday, family law associate at Irwin Mitchell, commented:

"The decision of the Supreme Court not to hear the appeal is very disappointing. They have missed a once-in-a-generation opportunity to rectify a human rights breach for transgender parents like Freddie McConnell. It is now up to Parliament to pick up the baton and make the vital changes needed. The ongoing consultations around law reform within the Gender Recognition Act may help, but this is deeply disheartening as the court could have made a compelling human rights argument now to ensure change.

"The registration of a child's birth by parents is something that so many people take for granted. There is something fundamentally wrong with the system if some parents are unable to register their child's birth accurately. That is a broken system and a private and family life issue. There are wider ramifications, particularly for young trans and gender diverse people. These people are not yet parents, but will be dissuaded by the current legal framework which does not offer even simple protections and proper recognition of trans lives."

For the Court of Appeal judgment, click here.

23/11/20